BREMPONG II vs. THE REPUBLIC [1997-98] 1 GLR 467

CASES REFERRED TO

(1) R v Bio (1945) 11 WACA 46.

(2) Lutterodt v Commissioner of Police [1963] 2 GLR 460, SC.

(3) Bernhard v R [1938] 2 KB 264, DC.

(4) R v Clayton (1920) 15 Cr App R 45.

(5) Amoako v Commissioner of Police [1961] 1 GLR 134, SC.

(6) Mensah v R (1945) 11 WACA 2, PC.

(7) Republic v Appianing [1972] 1 GLR 123, CA.

(8) State v Kassena (Ali) [1962] 1 GLR 144, SC.

(9) R v Wattam (1952) 36 CR App R 72.

NATURE OF PROCEEDINGS

APPEAL by the appellant, the Omanhene of the Atebubu Traditional Area and President of the Atebubu Traditional Council, from the judgment of the Court of Appeal confirming the conviction and sentence of the appellant by the Ashanti Regional Tribunal on a charge of stealing a Mercedes Benz car belonging to the council contrary to the Criminal Code, 1960 (Act 29), s 124 (1). The facts are sufficiently stated in the judgment of Bamford-Addo JSC.

COUNSEL

Charles Agbanu for the appellant.

J C Amonoo-Monney, Director of Public Prosecutions, for the Republic.

JUDGMENT OF BAMFORD-ADDO JSC.

This is an appeal against the judgment of the Court of Appeal which confirmed the conviction of the appellant by the Ashanti Regional Tribunal on a charge of stealing contrary to section 124(1) of the Criminal Code, 1960 (Act 29).

[p.469] of [1997-98] 1 GLR 467 The appellant, Nana Achiaw Brempong, was at all material times the Omanhene of the Atebubu Traditional Area and the President o£[sic](1) the Atebubu Traditional Council in Brong Ahafo. He was charged in 1991 with stealing a Mercedes Benz car No GK 1990 valued at ¢3 million, the property of the Atebubu Traditional Council. The facts supporting that conviction from the prosecution are that vehicle No GK 1990 was given to the appellant for his use as Omanhene by the Atebubu Traditional Council. That sometime in 1980 the vehicle broke down and needed repairs, so it was towed to Kumasi from Atebubu for the necessary repairs on the instructions of the appellant. The fitter who was to repair the vehicle collected various sums of money from the appellant to purchase the necessary spare parts but he rather dismantled the vehicle, sold the parts and bolted to Nigeria, leaving behind the rotten body, which was found to be beyond repairs. The said traditional council, owner of the vehicle, made it clear at the meeting of the council on 12 August 1986 that there was no money to effect repairs to the vehicle which had been left standing since 1980. The evidence for this can be found in exhibit I, ie the minutes in the record of proceedings of the meeting of 12 August 1986 chaired by the appellant, who was the President of the Atebubu Traditional Council. The agenda for that meeting included in paragraph (4) thereof the following entry “Repairs of State Car.” The report on this matter in the minutes stated as follows:

“(4) Repairs of State Car:

Nana the president wanted to know the outcome of three-man delegation in the persons of Nana Kwadwo Amofa, Benkumhene, Nana Kwame Gyimah, Twafohene and Nana Kwadwo Abora, Twafo’s visit to Kumasi to inspect the state of the car No GK 1990 which was sent for repairs. Giving account of their inspection tour, Nana Kwame Gyimah, Twafohene and the spokeman for the team stated that the fitter who was working on the said car had dismembered the car and sold out most of its important parts and bolted away to Nigeria leaving only the rotten body of the car. The car was therefore beyond repairs. He also added that they reported the fitter’s action to the Tafo Police, Kumasi.

[p.470] of [1997-98] 1 GLR 467

It was decided that since the car was beyond repairs, coupled with non-availability of funds the council could not do otherwise. The president therefore called for the next item on the agenda.”

Exhibit 1 was tendered by the appellant in his defence at the trial. According to the prosecution’s case the appellant (hereinafter referred to as the accused) sold the rotten body of the vehicle to a fitter, the third prosecution witness for ¢5,000 which he dishonestly appropriated. He was therefore charged with stealing the vehicle.

The accused’s case was that since the council had no money to repair the car and considering the state it was in, he understood the council to have abandoned it. Even though he denied selling it to the third prosecution witness, he also stated that when the car developed engine trouble he sent it to a fitter by name Yaw in Kumasi for repairs. That Yaw after taking money from him which he paid out of his own pocket, to buy spare parts to effect the repairs, dismantled the engine and other parts of the car, sold them and absconded to Nigeria. He claimed that he paid various sums of money on a number of occasions to Yaw to a total of about ¢16,000. Two of those payments were witnessed by the sixth prosecution witness who even produced a receipt, ie exhibit D to support one of the payments in 1980. The accused also mentioned the fact that the council in 1986 sent a delegation to ascertain the state of the car and the rumour that Yaw had absconded to Nigeria, and that this delegation made its findings known to the council as seen in the minutes in exhibit I referred to above. The delegation confirmed that what was left of the car was only the rotten body which could not be repaired. The accussed’s evidence in court as well as his statement to the police in exhibit B, which forms part of the prosecusion’s[sic](2) case, was confirmed by a prosecution witness, the sixth prosecution witness, and also in exhibits I and D, as well as in the accused’s own evidence in court. Not only was the accussed’s claim that he paid ¢16,000 out of his own pocket confirmed by the sixth prosecution witness, but he was not seriously challenged by the prosecution on this issue when the accused repeated it in evidence. The truth of this claim therefore remain solid and unchallenged on the evidence.

[p.471] of [1997-98] 1 GLR 467

Even though the accused denied selling the car, it is clear on the evidence that a claim of right to the proceeds of the sale of the body of the vehicle, namely ¢5,000 was a defence open to him, having already spent ¢16,000 from his own pocket towards the repairs of the car. It is to be noted that there is no evidence that the amount he spent on the repairs was ever refunded to him by the traditional council, owner of the car.

It is upon these facts that the accused was charged with stealing the vehicle valued at ¢2 million under section 124 of Act 29. On this evidence he was convicted by the Ashanti Regional Public Tribunal and sentenced to a fine of ¢200,000, which conviction and sentence were affirmed by the Court of Appeal. Dissatisfied with the judgment, the accused has appealed to this court on the following grounds of appeal:

“(1) The Court of Appeal was wrong in dismissing the appeal since the judgment of the Ashanti Regional Public Tribunal is unsupportable having regard to the evidence.

(2) The Court of Appeal was wrong in sustaining the charge of stealing against the appellant when there was no proof of dishonest appropriation and fraudulent intent on the part of the accused (ie the appellant).”

I propose to deal with the two grounds together, since both grounds are interrelated and need to be considered on the available evidence contained in the record of this case.

At the hearing of the appeal, the appellant’s counsel relied on his statement of case and added that there was no intention to defraud the council since the appellant used his own money to repair the car. On the part of the prosecution it was argued that:

“The appellant did not and could not raise the defence of ‘claim of right’” for he “had always denied ‘selling’ the car to the third presecutionsic(3) witness or any other person.” There was no “claim of right” made in good faith.”

I wish to state straightaway that I am not impressed by this argument of the prosecution. This submission seems to me to ignore the principle that the accused is under no obligation to prove his innocence, nor does any lie on his part absolve the

[p.472] of [1997-98] 1 GLR 467 prosecution from its onerous burden of proving its case against the accused beyond all reasonable doubt. Furthermore, whether an accused relies on a specific defence or not, where on the evidence, any legitimate defence is open to him, it is the duty of the trial judge to consider such defence however stupid it may appear to him to be. It is on the evidence that the accused paid about ¢16,000 towards the repairs of the vehicle, a fact not challenged by the prosecution; indeed that evidence in exhibit B tendered by the prosecution formed part of the prosecution’s case, as was also the evidence of the sixth prosecution witness. See as well the evidence of the accused himself in court on this issue. Therefore even if the accused denied selling the car to the third prosecution witness, which the court disbelieved, there was still the defence of claim of right open to him on the evidence. According to the accused, he thought he was entitled to recoup himself from the proceeds of sale of the car, namely the ¢5,000 which was even far short of the actual money he had paid from his own pocket. Surely, this evidence supporting a “claim of right made in a good faith” cannot be ignored. It is the duty of the trial judge in a summary trial to make findings of fact after considering the whole of the evidence before him, namely both the prosecution’s case and the case for the defence: see section 177 of the Criminal Procedure Code, 1960 (Act 30). He is also to convict only when a case has been proved beyond reasonable doubt against an accused.

It is trite law that a judge in summing up the evidence is bound to put the defence case however weak to the jury and failure to do so would lead to the conviction being quashed: see R v Bio (1945) 11 WACA 46. This was a case tried with a jury. However the judge sitting alone as a judge of facts is also bound to consider all the defence open to the accused on the available evidence. This duty has been explained in the case of Lutterodt v Commissioner of Police [1963] 2 GLR 429, SC, as stated in the headnote:

“(3) In all criminal cases where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages.

[p.473] of [1997-98] 1 GLR 467

(a) if the explanation of the defence is acceptable, then the accused should be acquitted.

(b) if the explanation is not acceptable, but is reasonably probable, the accused should be acquitted … “

In this case the trial judge did not consider at all the explanation of the accused as to whether the defence of “a claim of right” which was available on the evidence, was open or acceptable, and if not, whether it was reasonably probable. If this had been done, it would have been found on the evidence that in the circumstances of this case, that defence was reasonably probable and therefore that the prosecution had failed to discharge the burden of proof which lay on them. In a similar case of Atta v Commissioner of Police [1963] 2 GLR 460, SC it was held allowing the appeal, as stated in the headnote, that: “it is the duty of the court sitting on appeal from a conviction to consider whether the standard required in proving the guilt of an accused person has been attained at the trial. In this case the required standard had not been reached since the trial court did not give any consideration to the defence of the appellant. R. v. Dinnick (1903) 3 Cr. App. R. 77, C.C.A. cited.”

In this case, the trial judge failed to consider whether the prosecution had proved its case beyond reasonable doubt, ie whether every ingredient had been proved. What he did was merely to make the finding of fact that the accused sold the car and thereby convicted him. He did not advert his mind to the defence of “claim of right” open to the accused on the evidence, much more consider it, no doubt due to the denial of the accused that he never sold the car. In a charge of stealing it must be proved by the prosecution beyond reasonable doubt that the accused dishonestly appropriated the thing alleged to have been stolen by him: see section 120 of Act 29 which explains dishonest appropriation as follows: “An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right” made in good faith. The “claim or[sic](4) right” in

[p.474] of [1997-98] 1 GLR 467 this case is based on the evidence that the accused thought the vehicle had been abandoned in view of exhibit 1 and that having spent his own money of about ¢16,000 he was entitled to the ¢5,000 to recoup himself. If this is how the accused viewed his position, then whether his belief was right or wrong there would be no dishonest appropriation on his part and the prosecution would then have failed to prove the requisite mens rea beyond reasonable doubt. In the circumstances of this case the accused’s belief cannot be unreasonable so as to negative “good faith” and even if he was wrong in his assumption, it was the duty of the trial judge to consider the defence.

In the case of Bernhard v R [1938] 2 KB 264, Charles J reading the judgment of the court held, as stated in the headnote:

“A person has a claim of right within the meaning of s. 1 of the Larceny Act, 1916, if he is honestly asserting what he believes to be a lawful claim, even though his claim may be unfounded in law or in fact.”

He went on to explain at 270-271 thus:

“Mr. Phipps, in his able argument on behalf of the appellant, directed our attention to the following passage in Stephen’s History of the Criminal Law of England, vol. iii., at p. 124: ‘Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fradulently,[sic](5) however unfounded his claim may be. This, if not the only, is really the one case in which ignorance of the law affects the legal character of acts done under its influence.’ To the same effect is the statement of the law in para. 856 o1[sic](6) the title ‘Criminal Law,’ Halsbury’s Laws of England, 2nd ed., vol. ix., p. 497, contributed by, among others, the late Avory J. :”To prevent the taking from being felonious, the claim of right must be an honest one, though it may be unfounded in law or in fact’ … It follows in our judgment that the proper answer to the question which troubled at least one of the jury would have been that if the prisoner honestly thought that she had a claim, she was

[p.475] of [1997-98] 1 GLR 467 entitled to be acquitted, even though she was wrong in so thinking.”

See also R v Clayton (1920) 15 Cr App R 45. In that case the appellant was charged with stealing money from his wife who had obtained a separation order against him. As he was leaving the house he told his wife he had taken the money towards the money which she owed him. He persisted throughout that he had a right to the money. Rightly or wrongly he had a bona fide belief that he had a right to the money even though his wife denied that she owed him money. He did not go to the witness box and his defence was not put before the jury. It was found by the Court of Appeal that the appellant’s claim of right to the money ought to have been put to the jury as his defence. The court held that: “Whether he was right or wrong he had a bona fide belief that he had a right to the money.” And therefore the appeal was allowed. As is shown in the above cases, a claim of right negatives intent to defraud.

In the local case of Amoaku v Commissioner of Police [1961] 1 GLR 134, the Bernhard case (supra) was cited with approval, and it was held, as stated in the headnote: “It is clear on the evidence that the appellant had no dishonest intent. The conviction should therefore be quashed.” In that case the appellant, a policeman had in his custody and possession a cheque book belonging to the complainant insurance company. The policeman was investigating a case of loss of the company’s cheque book which was recovered from certain persons concerning whom inquiries were proceeding. The appellant took a leaf of the cheque book and gave it to his creditor apparently in the hope of avoiding worries from him. It turned out that the appellant in fact had no banking account. The very next day the appellant took steps to prevent the said creditor from presenting the cheque he had made out in his favour but the creditor presented the cheque all the same and found out that the appellant had no account at the bank. The appellant was convicted of stealing the cheque leaf. On appeal to the High Court, the conviction was confirmed and he appealed to the Supreme Court where the court found on the evidence that there was no fraudulent intent of dishonest appropriation whatsoever on the part of the accused. He merely intended to ward off [p.476] of [1997-98] 1 GLR 467 his creditor. The court per van Lare JSC (as he then was) at 136 stated:

“The learned judge of the High Court erred in not considering the main intent of the appellant. If he had done so he would naturally have felt himself constrained also to find in favour of the appellant on the charge of stealing the cheque leaf.

Under the circumstances as we find that there was no intention of dishonest appropriation of the cheque leaf in respect of which the charge of stealing had been preferred against appellant, we quash the conviction … The appeal is allowed.”

In any case of stealing where there is no satisfactory proof of mens rea or intent to steal or dishonestly appropriate property, no conviction would be recorded against an accused. Also where there is a bona fide claim of right supported by evidence, dishonest intention would not have been established and an accused would be entitled to an acquittal. In this present case, I am satisfied that there was sufficient evidence of a “‘claim of right” by the appellant to justify a finding that the appellant entertained an honest belief in his claim that having already spent over ¢16,000 of his own money on the repairs to the vehicle, he was, entitled to the proceeds of sale of the remaining rotten body, namely the ¢5,000. If he believed in this claim, whether rightly or wrongly, he would be entitled to an acquittal. If the trial judge had adverted his mind to this legal defence available on the evidence and had given it proper consideration as was his duty so to do, he would have come to the conclusion that the appellant was entitled to an acquittal.

The Court of Appeal fell into the same error when it affirmed the conviction: see the case of Mensah v R (1945) 11 WACA 2, PC. In that case it was argued on behalf of the appellant that as there was evidence of matters which could amount in law to provocation sufficient to reduce the crime of murder to manslaughter, this ought to have been submitted by the court to the jury and failure to consider it by the Court of Appeal was enough to justify the board entertaining the appeal on the ground

[p.477] of [1997-98] 1 GLR 467 that there had been a failure of justice in this respect. According to the board at 5-8:

“It does not appear that any attempt was made in either of the Courts below to argue that there was sufficient provocation to reduce the crime to manslaughter, and indeed as the defence relied on was one of accidental killing it is not surprising that counsel for the prisoner did not attempt to set up what would appear to be inconsistent with that defence. But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well on any other ground, the Judge must put that question to the jury. This was distinctly laid down in R. v. Hopper [1915], 2 K.B. 431, a case in some respects resembling the present, more especially in that the line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocation. This ruling was expressly approved by the House of Lords in Mancini v. R [1942] A.C. 1. The reason for the rule is that on an indictment for murder it is open to a jury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence there is nothing which would entitle a jury to return the lesser verdict the Judge is not bound to leave it to them to find murder or manslaughter. But if there is any such evidence then whether the defence have relied on it or not the Judge must bring it to the attention of the jury, because if they accept it or are left in doubt about it the prosecution have not proved affirmatively a case of murder . . . The principles upon which this Board acts in criminal cases are well known and need no repetition, but when there has been an omission to place before the jury for their consideration a matter of such grave importance that they were never led to consider whether in this respect the prosecution had discharged the onus which lay on them of proving murder as distinct from manslaughter, their Lordships think that they can properly entertain the Appeal. They would add that it must be seldom that they consider a matter which was not

[p.478] of [1997-98] 1 GLR 467 only not mentioned in the courts below, but was not included in the reasons given by the Appellant in his case. It was not indeed raised till his junior counsel addressed the Board, but in view of the opinion of the House of Lords in Mancini’s case (supra) as to the duty of the Court in such circumstances as they find existed here, they have thought it right to consider the matter, although not raised in the printed case.”

The appeal was allowed.

The appellants submissions on ground (2) in view of the above cases has much force and validity and the respondents argument in reply, namely that:

“The appellant did not raise the defence of ‘claim of right’ for he ‘has always denied selling the car to the third prosecution witness or any other person.’ There was no claim of right made ‘in good faith.’” does not in any way answer the appellant’s submission on ground (2).

The principle that in any trial it is the duty of the trial judge to consider both the prosecution’s case and the defence case, that is to consider the case as a whole, has not been followed in this case. The trial judge must consider any defence open to an accused whether raised or not once there is evidence as already stated earlier, however weak: see In R v Bio (supra) at 46 where it was stated that: “It is well established law that a Judge in summing up is bound to put the defence, however weak, to the jury … and that failure to do so will lead to a conviction being quashed.” In respect of the same principle, see Republic v Appianing [1972] 1 GLR 123, CA where it was held, as stated in the headnote:

“(1) the fact that an accused person’s defence is one of total denial of the offence charged does not mean that circumstances of either partial excuse (provocation) or absolute excuse justification cannot arise on the whole of the evidence.

(2) In a trial before a jury, the judge is enjoined by the Criminal Procedure Code, 1960 (Act 30), s. 277 to sum up the law and evidence in the case after the prosecution and

[p.479] of [1997-98] 1 GLR 467 the defence have closed their cases and the fact that the defence is a total denial of the offence cannot absolve the judge from this mandatory duty.”

Further, contrary to the respondent counsel’s submission that since the accused denied selling the car he cannot raise the defence of “a claim of right in good faith”: see The State v Ali Kassena [1962] 1 GLR 144, SC where it was held, as stated in the headnote:

“(2) an inference of guilt does not necessarily flow from false or conflicting explanations given by the accused, especially where a person of humble station in life seeks to render his explanation more plausible or acceptable.”

In that case the court cited the case of R v Wattam (1952) 36 Cr App R at 76 where Oliver J observed that:

“Those are matters of the greatest significance, but they will not suffice by themselves. There must be something more than the telling of lies to the police before a man is convicted of any crime, let alone murder.”

The trial regional tribunal failed in its duty under section 177 of Act 30 to properly consider the whole of the defence in accordance with all the principles discussed above and merely convicted the appellant on the finding that contrary to his denial he sold the car to the third prosecution witness. But even then if the accused lied on this issu,[sic](7) he is not precluded from relying on the defence of “claim of right made in good faith” in the circumstances in this case, and this defence should not have been disregarded by the trial tribunal merely because he did not rely on it specifically when there is supporting evidence of it on the record, and for this failure the trial tribunal erred.

If the tribunal had applied the proper principles discussed above in this case, it would have considered the defence of “claim of right”, as a defence available to the accused which would negative dishonest appropriation and would have acquitted the appellant, considering the evidence the record [sic](8). The Court of Appeal also repeated this error.

[p.480] of [1997-98] 1 GLR 467 The defence of “claim of right” which has been upheld means that the prosecution failed to prove the charge of stealing and the appellant is therefore entitled to an acquittal.

JUDGMENT OF AMPIAH JSC.

I agree.

JUDGMENT OF ACQUAH JSC.

I agree.

JUDGMENT OF ATUGUBA JSC.

I agree.

JUDGMENT OF AKUFFO JSC.

I also agree.

DECISION Appeal allowed.

LSNA

Endnotes

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